The Jujitsu of Same-Sex Marriage

From Web Exclusives

There has been no want of “writing on the wall” about the upcoming cases on marriage. Justice Clarence Thomas could not help but remark on the point that a majority of his colleagues had already, and gracelessly, signaled their “intended resolution of that question.” And yet, writers and lawyers on both sides continue to expend their genius in writing briefs for the Court, clinging to the possibility that the words they set down may yet tip the balance. Continue Reading »

Recasting Religious Freedom

From the June/July 2014 Print Edition

Few among us concerned for the defense of religious freedom can doubt that these have become dark times indeed. Most recently, arguments have been brought before the Supreme Court—there has been a veritable cascade of briefs—against the government on Obamacare. Many of these have one way and another concentrated on the argument that even a business organized as a corporation, in reflecting the character of its founders, may still be touched with a religious character.A corporation is an association of free persons, and no one is contesting any longer that a corporation, for many legal purposes, has the standing of a person. Every association, as Aristotle taught us, is aimed at some notion of a good, whether that good be the making of shoes for profit or the relieving of famine. Based both on legal precedents and the logic of the thing, it should be clear that there is no plausible way to argue that, among all the things that may shape the notion of the “good” sought by a corporation, a religious understanding is the only one that must be ruled out as illegitimate. Thus one has reason to be fairly confident that such an understanding will prevail in these cases. But it could prevail and yet the case still be lost. In the end, the heart of the matter will come down to something else.Even people experienced in politics were jolted to discover that the Obama administration had deliberately chosen, as a political stroke, to pick a fight with the Catholic Church by compelling both Catholic institutions and Catholic businessmen to cover abortifacients and contraceptives in the medical insurance they offer to their employees. (And what can be said in regard to Catholics can be said just as well for Mormons and Evangelicals.) The religious, now embattled in the courts, have been persistent in invoking part of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Yet it appears to be coming as a surprise to religious Americans and their lawyers—even so late in the seasons of our experience—just how thin and equivocal the First Amendment might prove to be as a support for their religious freedom. Continue Reading »

Justice Alito and Eight Dissenters: The Court Backs Into Relativism

From Web Exclusives

Our friends at the Wall Street Journal have just celebrated the decision of the Supreme Court this past week for vindicating “Free speech for Jerks”: The Rev. Fred Phelps and his merry band have drawn the attention of the media as they have gone about staging demonstrations at funerals, and using those occasions as platforms for denouncing, in raw terms, homosexuals, the Catholic Church, the military, and American interventions abroad… . Continue Reading »

One of the Two Philosophers Responds

From Web Exclusives

I came to discover only late that, thanks to the exertions of Micah Watson in his “A Tale of Two Philosophers,” published here last Friday, the readers of First Things were given an account of this interesting exchange I had with my young friend, Matthew O’Brien, taking up the vocation of philosophy. What seemed to rage, though, in the comments attached to the piece were rather emphatic comments, some in criticism and some in support, by people who evidently had no idea of what I had actually said in those pieces, written in that exchange with O’Brien… . Continue Reading »

Pastor Jones and The Law as it Used to Be

From Web Exclusives

That dramatic event in prospect, the burning of Korans by Pastor Terry Jones and his merry band, became far larger as a story than it could ever have been as a real happening. That pseudo-event has now been canceled. But it is still worth reflecting on, because it reminded us of the rather unlovely shaping of the law, by conservative as well as liberal judges, over the past forty years… . Continue Reading »

Mr. Justice Breyer Writes a Dissenting Opinion

From Web Exclusives

On June 28, the Supreme Court released the decisions that finished the business of the year. Notable among them was the judgment handed down in McDonald v. Chicago on the Second Amendment and the right to bear arms. Just two years earlier a slim majority of the Court affirmed for the first time that the plain words of the Amendment meant, in fact, what layers of long articles in the law reviews could not quite explain away… . Continue Reading »

Vast Dangers—Confirmed

From Web Exclusives

The Supreme Court convened on Monday in its final session of the term and released its judgments on a number of cases that have drawn deep interest”and stirred high anxiety. One of the judgments was the case of the Christian Legal Society at the Hastings Law School in California (Christian Legal Society v. Martinez). I wrote on this case in our issue of June/July (“Vast Dangers in a Small Place”), and I regret to report that the outcome turned out to be quite as grievous as the one I anticipated in that piece… . Continue Reading »